Corrie Lawrence Teague, an Oklahoma state prisoner appearing pro se, seeks a
certificate of appealability to challenge the district court's summary dismissal of his
habeas petition under 28 U.S.C. § 2241.(1) He also renews his motion to proceed in forma
pauperis.

Teague is serving a twenty year sentence for drug related convictions pursuant to a
guilty plea entered on June 14, 1996. Teague does not appeal these convictions or their
validity. Instead, Teague asserts he is entitled to a reduction of his sentence under
Oklahoma House Bill 1213 which was recently repealed by House Bill 1009X.
Specifically, he asserts that "House Bill 1009X deprive[s] me from receiving the
retroactive beneficiary Felony Sentencing Policies implemented in[] House Bill
1213 . . ." (Appellant's Br. at 16(13).) Petitioner asserts violations of his Fifth, Eighth
and Fourteenth Amendment due process and equal protection rights under the United
States Constitution.

The Bills to which petitioner refers are part of a prolonged legislative battle over
Oklahoma's "Truth in Sentencing Act," 1997 Okla. Sess. Laws ch. 133, House Bill 1213
("the Act"). The Act was adopted in Oklahoma on July 1, 1997, and was originally
intended as a get-tough-on-crime measure. It included provisions requiring serious
offenders to serve seventy-five to eighty-five percent of their sentences without the
availability of parole. It also established a sentencing matrix and abolished jury
sentencing in an attempt to standardize sentencing among districts. The sentencing
matrix apparently would have reduced the amount of time certain offenders would be
required to serve. These provisions spawned a multitude of appeals by prisoners
challenging their sentences on the grounds that the Act should be applied to them
retroactively. Notably, this Court has held repeatedly that the Act did not create any
federal constitutional claims for those seeking habeas relief. SeeTurner v.
Champion,
No. 98-6480, 1999 WL 1032972, at *1 (10th Cir. Nov. 15, 1999) (collecting cases).

Teague's petition seems to raise issues of first impression in this Court. On closer
review, however, it is obvious that Teague merely repackages the arguments made in
previous petitions to this court cited in Turner. Instead of directly asserting that he is
entitled to retroactive application of the Truth in Sentencing Act, Teague claims his
constitutional rights have been violated by the postponement and subsequent repeal of the
Act.(2) In other words, had the Act not been
repealed, Teague argues he would have been
entitled to retroactive application of its provisions. Teague also asserts that the repeal of
the Act violated various provisions of the Oklahoma Constitution.

The Ex Post Facto Clause of the United States Constitution, Art. I, § 9, "bars
application of a law 'that changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed . . . .'" Johnson v. United States, 120
S.Ct.
1795, 1800 (2000) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (emphasis
deleted)). Generally, to be cognizable a violation of the Ex Post Facto Clause requires
proof that the law challenged operates retroactively and that it raises the penalty from that
which would have been imposed when the criminal activity occurred. Id.

Petitioner seems to misconstrue his right under the Ex Post Facto Clause of the
Constitution to be both affirmative and negative. The right is usually thought of as a right
to be free from ex post facto laws. Seeid. at 1801 ("The Ex Post Facto Clause
raises to
the constitutional level one of the most basic presumptions of our law: legislation,
especially of the criminal sort, is not to be applied retroactively."). Petitioner asserts the
right to be entitled to retroactive application of the adopted but non-effective Truth in
Sentencing Act. However, the Ex Post Facto Clause does not work in this manner. We
can find no support for the asserted right to have a law that was adopted, but repealed
before its effective date, applied retroactively on collateral review. Nor can we find any
support for petitioner's claim that the Oklahoma laws which postponed and repealed the
Act violated his rights under the Ex Post Facto Clause. It is true that these laws resulted
in the reinstatement of the 1991 Oklahoma laws which would have been repealed had the
Act been made effective. However, until the Act became effective--which it never
did--petitioner was convicted under, and his sentence was governed by, the 1991 laws.
Thus, we can not see how his penalty was increased from the time he committed his
original unlawful acts. In fact, we can not see how it was changed at all.(3)

We agree with the district court in its adoption of the magistrate's judge's
conclusion that the "repeal of the Oklahoma Truth In Sentencing Act which was not in
effect at the time of Petitioner's offenses or sentencing has no constitutional implications
whatsoever with respect to Petitioner's sentences."(R. Doc. 3 at 3.)

Because petitioner has failed to make a substantial showing of the denial of a
constitutional right, his request for a certificate of appealability is DENIED.
This appeal
is DISMISSED. Teague's motion to proceed in forma pauperis is
GRANTED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. The case is unanimously ordered submitted
without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.

1. Both the magistrate and district judges
referred to Teague's petition as brought
pursuant to 28 U.S.C. §§ 2241 or 2254. However, because
Teague challenges the
execution of his sentence rather than the validity of his conviction or sentence,
we
analyze his claim under 28 U.S.C. § 2241. SeeDavis v. Kaiser, No.
00-6080, 2000 WL
895603, at *1 (10th Cir. July 6, 2000). Regardless of whether his petition is considered
under § 2241 or § 2254, Teague must be granted a certificate of appealability before
we
may consider his appeal on the merits. SeeMontez v. McKinna, 208 F.3d 862,
867-69
(10th Cir. 2000).